The Leniency Programme under the Indian Competition Law

The concept of "leniency" in competition law, or better known as the "leniency programme", has proven to be an extremely important instrument in fighting unfair competition. In the Republic of Northern Macedonia (hereinafter RNM), this concept of suppressing or reducing unfair competition, more or less, exists solely as a law conception. Nowadays, when the EU discusses the impact of the global crisis and the Coronavirus pandemic on the level of utilization of ”leniency programme", this concept is still unknown or not a well-known concept for business sector in RNM. The main focus of this article is “leniency programme” in RNM. The key questions that we aim to answer here, are: whether and to what extent this instrument is predicted in Macedonian competition law? Is it predicted only as a law category, or it has practical implications too? Although this research refers to RNM, we strongly believe that a thorough study of “leniency” requires exploration of European conception of “leniency” too. For that purpose, we use relevant EU legislation, as well as practice. Thus, our main goal is to consider the position of RNM towards “leniency” and bring into relation to the Macedonian competition law. We base our hypothetical framework on the assumption that the applicability of “leniency programme” in RNM is at the lowest level. Furthermore, that the undertakings are not interested in applying “leniency”. This situation is partly due to the lack of information, the complexity of the application procedure, as well as other factors that are related not only to the attitude of the executive of undertakings, but more to the general economic circumstances, economic development, the market size of goods and services, etc. Using the analytical-descriptive method, the comparative method, and the method of analysis and synthesis, we’ll elaborate the situation in RNM regarding this issue, and we will present our views considering the questions: whether certain measures should be taken regarding „leniency program“, and what should be done to boost the use of this program in the Macedonian business sector.

The leniency program is a pardon mechanism that allows cartel members to complain to the business competition authorities about cartel operations and receive partial or whole exemption from the penalties and/or fines that should be imposed. In Japan, the Leniency Program is in use. This article's formulation of the problem is how to create a leniency program in Japan based on the Antimonopoly Act and what are the chances of doing so to expose cartels in Indonesia's competition law system. This article offers a normative legal analysis of Indonesia's prospective use of leniency schemes in cartel proceedings. The research is descriptive-analytical in character, and data collecting through literature reviews and interviews, whereas data processing is qualitative. The findings of the research and debate indicate that it is highly likely that Indonesia will implement the leniency program by enacting the bill as the new Business Competition Law. The research's finding is that the leniency program is likely to be implemented in Indonesia by passing the bill as the country's new Business Competition Law because it is comprehensively implemented in Japan, from reporting procedures to sentencing reductions. It is suggested that Law No. 5/1999, whose provisions include a leniency program system, be amended, and that the KPPU then work with the LPSK to offer protection for reporters in the leniency program system.

Leniency under the Japanese Antimonopoly Law (AML) is claimed to have been a success. Toshiyuki Nambu, an official of the Japan Fair Trade Commission (JFTC) writing in his personal capacity, recently expressed this opinion in an article with the telling title ‘A Successful Story: Leniency and (International) Cartel Enforcement in Japan’. Nambu’s assessment is in line with those expressed by several early observers of the leniency programme. Former Chairman of the JFTC, Kazuhiko Takeshima claimed ‘that the leniency programme has produced significant results since its introduction.’ And an international firm of solicitors has similarly claimed that with leniency ‘the JFTC now has teeth’. Akinori Uesugi, formulating his observations one year after the leniency programme went into effect in 2006, gave direction for drawing such conclusions. The leniency programme, he observed, had triggered high number of leniency applications, giving way to a smooth decision making process by the JFTC. The number of leniency applications and the process of decision-making tell a partial story only, and they are insufficient measures for assessing the success or otherwise of a leniency programme. A leniency programme is an enforcement tool, aimed at facilitating both deterrence and detection of cartels. To appreciate fully the effectiveness of a leniency programme, and to assess any overarching policy on cartel deterrence and detection, more information is required. While acknowledging the high rate of leniency applications in Japan and the possible conclusions that can be drawn from it, this chapter draws on additional data, including the nature of the firms applying for leniency, the nature of the cartels detected through leniency and the extent to which leniency applications are followed by infringement decisions by the JFTC. Based upon this data, the chapter offers a more rigorous and complete assessment of the effectiveness of the Japanese leniency programme to date.

Globalization is characterized by a process where the economy becomes more tightly integrated and manifested in the form of free trade. Free trade forced by economic globalization has brought adverse effects. Some of the harmful effects of free trade include the rise of international cartels, for instance, those involved in price-fixing, bid-rigging, output limitation, and market sharing. This normative legal research aims to examine the application of leniency programs in the enforcement of Competition Law in Singapore and how Indonesia can learn from Singapore. The research indicates that one particular method is commonly used in several countries in the context of law enforcement against cartels, which is known as the leniency program or the Whistleblower. Singapore, as one of the neighboring countries of Indonesia, also applies for the leniency program. As a result, Singapore has successfully resolved many international cartel issues. Consequently, the leniency program gives benefits for providing evidence for related cases. In conclusion, Indonesia should learn from Singapore's experience in implementing the leniency program to prevent the negative effect of free trade, including the proliferating international cartels.

Leniency programmes in competition law make it possible to grant immunity from fines, or a reduction of any fine that would otherwise have been imposed on an undertaking who was a party to an unlawful agreement restricting competition. This immunity or fine reduction is granted as a reward for the cooperation with the competition authority and the provision of evidence of an unlawful agreement restricting competition. Legal rules regarding the application of leniency programmes have been introduced at the EU level as well as in the national legislations of numerous countries, including Polish law. The author makes an attempt to establish the degree to which the Polish leniency programme is an effect of the impact of EU law or the application of law within the EU (for instance, by its institutions). The analysis has been made on three levels. Examined first was the degree to which the Polish leniency programme is a result of spontaneous harmonisation. Second, the impact of legislative harmonisation in the area of leniency programmes was taken into consideration. Finally, it was verified whether those Polish authorities that apply Polish competition law are inspired by judgements issued by EU courts in cases regarding leniency programmes.

Competition law’s main objective is to maximize consumer welfare by ensuring the competitive functioning of the markets. In particular, competition law has to address anticompetitive agreements between competitors or firms at different levels, abusive behaviour of dominant firms, mergers and public restrictions of competition. This paper will focus on hard-core cartels considering that they are the most serious violation of competition law. The instruments used to fight against this anticompetitive behaviour (leniency programs) have resulted to be fairly effective. Many modifications and developments have taken place since the leniency program was first established in the European Union in order to make it an optimal tool to fight hard-core cartels. However, it is submitted that a significant margin of improvement remains for several features of the program. Discussion throughout this paper about the pitfalls of this leniency system will remark the need for further changes enabling these programs to become the ultimate solution against hard-core cartels. The thesis concludes with a study case of the Spanish competition law that will reflect the strengths and weakness of the leniency programs in the practice.

In response to cartel formation, competition lawyers and policymakers in nine Asian jurisdictions have experimented with leniency programmes. This mechanism allows firms to come forward with information in relation to their illegal cartel participation in return for a reduction of or immunity from a sanction. The experimentation plays out across three different dimensions: the revision of early adopted leniency programmes, the introduction of newly written leniency programmes, and the decision – deliberate or otherwise – not to create a leniency programme. This volume is the first to analyse the empirical evidence across a number of countries to determine how effective these measures have been, and how they have been amended in response to problems encountered. In this volume, local experts from key Asian jurisdictions, together with international experts, offer an introduction to this fast-developing field, and explore the theoretical, international and regulatory contexts of leniency programmes.

This research is intended to explain whether the leniency program can be applied in Indonesia. In accordance with Law No. 5 of 1999, Indonesia currently has not implemented a leniency program in terms of cartel empowerment efforts. The Leniency Program is expected to be a solution to reduce and be able to open a veil of cartel that has been difficult to prove. Research method in this paper using normative method with the analysis of regulations and comparative law. The results of this study show that the leniency program that has been launched by the developed state can reduce and open cartel cases significantly. Even so, the application needs to be considered according to the needs of the country. In a number of other studies, developing countries that apply the leniency program only duplicate those that have been implemented by other countries so that their application is less effective. The amendment to the competition law is needed to applied leniency program

This research is intended to explain whether the leniency program can be applied in Indonesia. In accordance with Law No. 5 of 1999, Indonesia currently has not implemented a leniency program in terms of cartel empowerment efforts. The Leniency Program is expected to be a solution to reduce and be able to open a veil of cartel that has been difficult to prove. Research method in this paper using normative method with the analysis of regulations and comparative law. The results of this study show that the leniency program that has been launched by the developed state can reduce and open cartel cases significantly. Even so, the application needs to be considered according to the needs of the country. In a number of other studies, developing countries that apply the leniency program only duplicate those that have been implemented by other countries so that their application is less effective. The amendment to the competition law is needed to applied leniency program

Aiming at attracting cartel members to surrender or expose illegal acts of others by reducing or exempting them from public law responsibilities, the leniency program in anti-monopoly law is an effective mechanism throughout the world to discover and crack cartels. The leniency program can be divided into various categories, all of which are based on three preconditions: Filing an application, providing effective information and fully cooperating with anti-monopoly authorities. China has a legal tradition similar to the program as well as legal grounds for establishing such program. However, implementation of the program in China may face potential problems arising from various factors including inner conflicts of the anti-monopoly legal regime, ambiguity of enforcement rights and weakness and lack of administrative law liabilities.

This paper will investigate whether changes to the Japanese Leniency Program can contribute to an even more successful leniency policy in Japan. By engaging in this kind of research, this paper does in no way pretend to create an optimal leniency program for Japan. Such an endeavor will eventually fail for any country, as a leniency program basically is a strategy determining game. In order to choose for an optimal outcome of the strategy, full information for each of the participants of the game on each other is required. This may seldom be the case. The aim of the paper is rather limited to analyze whether there are enough incentives to report illegal cartel activity and whether these incentives are not hampered by legislative shortcomings.

Enforcement is the backbone to any successful competition regime. The Competition Commission of Singapore in enforcing Singapore's Competition Act 2004 has performed this role steadily having issued Guidelines on Enforcement, Appropriate Amount of Penalty and Leniency Programme. This article considers the principles applied by the Commission in setting financial penalties upon an infringement of section 34 of the Act which prohibits anti-competitive agreements. Since section 34 came into force more than five years ago, three significant decisions have represented 'firsts' in the development of competition law in Singapore: (i) first infringement decision on 9 January 2008 involving six pest control operators for bid-rigging or collusive tendering; (ii) decision against sixteen coach operators and their trade association for price-fixing; six parties appealed and the Competition Appeal Board made its first decision on 24 March 2011, and (iii) decision against fourteen electrical and building works companies for bid-rigging; one company was given full immunity representing the first whistle-blowing case under the Leniency Programme. This article has three parts: setting out facts, principles of setting fines as applied by the Commission on the three cases and concluding with observations on the Commission's approach to using penalties for a deterrence objective complimented with a leniency programme.

This chapter presents a brief historical overview of bilateral treaties in competition law. It provides some general comments on the policies of the EU and the USA. The chapter looks at the most comprehensive category of bilateral treaties, that is, those between the EU and the USA, the USA and Canada, the EU and Canada as well as that between the USA and Australia. Less comprehensive bilateral agreements are also discussed, that is, between the EU and China and between the USA and China. The chapter talks about the European Competition Network (ECN) and the European Economic Area (EEA). It further deals with less comprehensive forms of co-operation, which include general agreements containing competition provisions. Finally, the chapter explains the need for developing instruments for further co-operation providing for coordinated settlements and leniency programmes. Keywords: bilateral treaties; competition law; European Competition Network (ECN); European Economic Area (EEA); leniency programmes

The aim of the article is to analyze the EU regulations regarding the leniency program in competition law and its impact on cartel detection. First of all the purpose and substance of the leniency program have been analysed, moreover the article analyses EU regulations on partial and full leniency as well as differences with American competition law. The article uses the formal-dogmatic and legal-comparative resarch methods – mainly American solutions were used for comparision with EU law. The thesis of the article is the statement that the leniency program should not be considered as the main legal instrument for detecting cartels but it should complement other instruments. The research results can be used for further research on legal regulations which are used for detecting cartels

The article analyses the relationship between the leniency program in competition law and liability for damages for breach of competition rules and their interaction. The author points out that current rules on private actions for damages reduce incentives for cartel participants from applying for leniency, and therefore undermine leniency programmes. In addition, the author also explains that granting leniency recipients immunity from liability in follow-on actions for damages deprives partially the victims of competition law infringements of their subjective right to claim compensation for the harm caused to them.